Arun Kumar Ghose and ors. Vs. State of Jharkhand and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - rule 54 of the jharkhand minor mineral concession rules clearly and categorically excludes the other agency including the police to interfere with the mining activities as contained in its provisions.d.k. sinha, j.1. the petitioners have invoked the extraordinary writ jurisdiction of this court under article 226 of the constitution of india for quashment of their entire criminal proceeding arising out of sikaripara p.s. case no. 30 of 2004 corresponding to g.r. no. 549 of 2004 registered for the offence under sections 414/120-b, ipc and section 40(iv) of the bihar mines and minerals concession rules, 1972.2. the prosecution story in brief was that on 4.6.2004 at about 2.30 p.m. the police team led by the respondent no. 2 intercepted several trucks on tip off, loaded with stone boulders, carried from the village chitragarhia benagarhia site after illegal quarrying and on demand it was alleged that no valid document was produced by the drivers of the truck nos. w.b.-67-1086, w.p.-53- 3562, w.m.k.-4168, u.s.p.-4031, b.r.l. 8350 and w.b. 53-0285. on search, about 8 tonnes of boulders were found loaded on each of the trucks. however, in the process of search, one of the drivers escaped with the truck no. w.b. 73-3695 with the stone boulders loaded thereon. the prosecution party had reason to believe that the stones were mined by illegal means, pursuant to criminal conspiracy and transported through the said trucks to which no document was produced either of quarrying or transportation. all the trucks loaded with stone boulders were seized and a seizure list was prepared in presence of the witnesses.3. the petitioners nos. 1, 2, 3, 4, 7 and 11, according to the learned counsel, were the owners of the trucks bearing registration nos. u.p.s. 4031, w.m.q. 6093. w.b.-53-2085, w.m.k.- 4168, b.r.l. 3350 and b.r.j. 7116 respectively whereas the petitioner nos. 5, 8, 9, 12, 13 and 14 were the owners' of mines. according to the learned counsel, petitioner nos. 6 and 10 were the owners of boulders allegedly being transported on trucks to the crushers.4. advancing his argument, learned counsel submitted that the officer-in-charge, sikaripara police station by his report dated 21.6.2007 submitted before the c.j.m., dumka being called upon stating that the boulders loaded on the truck of the petitioner no. 1 bearing registration no. w.b.-53-3562, coming from m/s. neelam stone works and its challan thereof bearing the signatures of mining officer and mining inspector were found genuine. similarly, in relation to the truck no. w.b.-67-1086 of the petitioner no. 2 which was also carrying stone boulders the officer-in-charge further stated that its challan had got bearing of the genuine signatures of the mining officer and mining inspector (annexure-2) and in that manner no offence was made out against these two petitioners. the trucks of both the petitioners were released by the order dated 25.6.2004 of the c.j.m., dumka (annexure-3).5. on the point of law, the counsel submitted that in exercise of the powers conferred under section 15 of the mines and mineral (regulation and development) act, 1957 bihar minor mineral concession rules, 1972 was framed and the same was adopted by the state of jharkhand under the bihar re-organisation act, 2000 until jharkhand mines mineral concession rules, 2004 was framed by the legislature. rule 57 jharkhand mines mineral concession rules, 2004 speaks about the person competent to launch prosecution against offenders under the rules which reads as follows:no court inferior to that of magistrate of the 1st class shall try and offence punishable under these rules and no court shall take cognizance of any offence under these rules except upon a complaint made in writing by the competent officers or deputy director of mines or additional director of mines or director of mines or any other officer empowered by the government.6. similarly, rule 40 (i) of the bihar minor mineral concession rules, 1972 corresponding to rule 54(i) of the jharkhand minor mineral concession rules, 2004 speaks.whoever is found to be extracting or removing minor minerals or on whose behalf such extraction or removal is being made he be an agent, a manager, an employee or a contractor or a sublessee, otherwise than in accordance with these rules, shall be presumed to be party to the illegal removal of the minor mineral and every such person shall be punishable with simple imprisonment which may extend to six months or with fine, which may extend to rupees five thousand or with both.7. learned counsel consistently argued that on the face of the special law viz jharkhand minor minerals concession rules, 2004 that institution of the case for the similar nature of the offence under section 414 of the indian penal code, which is a general law, is unsustainable. the apex court in raj kapoor v. laxman reported in : 1980crilj436 was consistent that the provisions of special law shall prevail upon the provisions of general law,8. upon careful consideration, i find that rule 57 of the jharkhand minor mineral concession rules, 2004 provides that unless a complaint or fir in writing is presented or lodged by a competent officer, deputy director of mines, additional director of mines, director of mines or any other officer authorised by the government on this behalf, no court shall take cognizance of the offence under these rules and therefore, the fir lodged by the respondent no. 2 (awadesh kumar singh) inspector of police was not sustainable as he was neither a competent officer so to do nor authorised by the government under the rules. i find substance that on the face value of the penal provisions as attracted under section 54(i) of the jharkhand minor mineral concession rules, 2004 derived from rule 40(i) of the bihar minor mineral concession rules, 1972 is self-contained which is special law for the alleged offence and therefore, the penal provision for the offence under section 414 of the ipc shall not be attracted.9. though a counter-affidavit has been filed on behalf of the respondent-state but the questions which have been raised on behalf of the petitioners on the point of law have not been confronted either on affidavit or orally and therefore, i have reason to believe that the respondents acquiesced the contention of the petitioners.10. i, therefore, find and hold that the prosecution of the petitioners on the written report of the respondent no. 2, who was not empowered to do so is unsustainable. similarly, i further find that the challans produced on behalf of some of the petitioners in respect of transportation of stone boulders on the truck were found genuine by the same agency which lodged the fir earlier on the allegation that no valid document was produced on behalf of the accused-petitioners at the relevant time of search and seizure of the trucks with the materials. rule 54 of the jharkhand minor mineral concession rules clearly and categorically excludes the other agency including the police to interfere with the mining activities as contained in its provisions.11. under the aforesaid premises, i find merit in this writ petition, which is accordingly allowed and the criminal prosecution of the petitioners namely (1) arun kumar ghose (2) kalyan bhattacharya (3) samina bibi (4) abdul samad (5) mirtunjay trivedi (6) sunil mandal (7) manoj kumar bhagat (8) dilip kumar jaiswal (9) keraf soren (10) ranbir singh (11) arun kumar singh (12) rajesh prasad bhagat (13) bajrang rajak and (14) praveen kumar singh in sikaripara p.s. case no 30 of 2004 corresponding to g.r. no. 549 of 2004 is quashed.